On October 18, 1966, a check in the amount of $1,280.00, payable to Curtis Turner and signed by A. K. Brady was presented to Mrs. Phyllis L. Boyer, a Teller at the York Bank and Trust Company, York, Pennsylvania, and was cashed by her. On October 20, 1966, a check in the amount of $2,800.00, payable to Herman Jordan and signed by William A. Becker, was presented to Mrs. Cheryl L. Keener, a Teller at the same Bank and was similarly cashed by her. Both checks were cashed by the Tellers because they bore the initials of Robert Gordon, Assistant Manager of the Bank. Subsequently, on October 21, Mr. Gordon learned that the checks were invalid
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and he so informed his Tellers to be on the lookout for checks bearing his initials. That same day a check containing Mr. Gordon's initials was presented to Mrs. Boyer and she immediately recognized the man presenting the check as the same one for whom she cashed the check on October 18. According to Mrs. Boyer, she remembered this man because he had previously left an impression on her because he was well-dressed, of very dark complexion, and had bulging eyes.
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She excused herself in order to bring the check to Mr. Gordon and while doing this she pointed to the man who had presented it, whereupon the man ran out of the Bank and Mr. Gordon pursued him for a half block, but was unable to apprehend him.

On November 25, 1966, Special Agent Daane of the York Office of the Federal Bureau of Investigation displayed a group of photographs, including one of defendant, to Mr. Gordon, Mrs. Keener and Mrs. Boyer and all separately and independently identified defendant as the person who presented the checks for payment. That afternoon the three eyewitnesses were taken to Baltimore where they viewed five men in a lineup
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and, once again, all three separately and independently identified defendant.

Beard contends that the lineup identification was tainted by the pre-line-up photographic exhibition held earlier that same day in York. He focuses on the fact that the photographs were shown to the witnesses several hours before the lineup while he was in custody and that the picture of him shown to the witnesses was inscribed "Baltimore County Police."
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This contention is governed by the principles enumerated in Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968).
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First of all, an examination of the pictures used by the FBI reveals that eight of the nine pictures were mug shots with the usual identifying plate containing numerals, dates, and name of police department, so that this portion of Beard's argument is rejected. Secondly, the record of the hearing on Beard's motion to suppress establishes that the in court identification of Beard was not based upon any pretrial identification, photographic or lineup, but that the identifications were based upon the Government witnesses' own independent observation of Beard at the time of the commission of the crime. The testimony of these witnesses -- Mrs. Boyer, Mrs. Keener and Mr. Gordon -- was not altered at any time despite a thorough testing of their reliability by defense counsel. Based upon this evidence, I conclude that the photographic exhibition of the FBI several hours before the Baltimore, Maryland, lineup did not taint any subsequent identification of Beard, and their in court identification of Beard was based upon their own independent observation of Beard at the time he was in their presence in October, 1966. The photographic identification in this case was simply not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification of Beard.

I find that the verdict of guilty was not against the evidence, the weight of the evidence and the weight of the law. Beard's motion for a new trial will accordingly be denied.

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